SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized.)

Norfolk Southern Railway Company v. Intermodal Properties, LLC (A-117-11) (070240)

Argued May 14, 2013 -- Decided August 6, 2013

HOENS, J., writing for a unanimous Court.

In this appeal, the Court considers two statutory provisions relating to the eminent domain power vested in 

public utilities and railroads: (1) the limitation in N.J.S.A. 48:3-17.7 that a public utility’s taking of private property 

be “not incompatible with the public interest”; and (2) the requirement in N.J.S.A. 48:12-35.1 that a railroad may 

only take property to the extent that the “exigencies of business may demand.”

Plaintiff Norfolk Southern Railway Company owns and operates Croxton Yard, a large intermodal freight 

facility in Secaucus, New Jersey. At Croxton, which is open nearly around the clock, freight containers are 

transferred between trains and tractor-trailer trucks for delivery to final destinations. Containers are off-loaded from 

trucks or trains and placed in parking spaces prior to being transferred to the next transportation modality. The yard 

is typically at eighty percent capacity, and over 1,500 trucks pass through it each day. In order to remain efficient, 

Norfolk Southern must limit dwell time within the yard, which is a measure of the time it takes a truck to enter and 

leave the yard, as well as how long a container stays in the yard between off-loading and pick-up. By 2002, existing 

traffic had caused double-parking of containers and increased dwell time, and business was expected to continue to 

grow. The railroad’s future plans included the Crescent Corridor project, which would expand rail service from 

ports in New York and New Jersey across the United States and into Mexico. In 2004, Norfolk Southern decided to 

expand the yard by acquiring three adjacent properties, including one owned by defendant Intermodal Properties, 

LLC. Intermodal’s property would provide 291 additional parking spaces and would connect Croxton with Norfolk 

Southern’s land on the other side of Intermodal’s property. The property’s proximity to the tracks also would 

improve efficiency without increasing dwell time. Intermodal rejected Norfolk Southern’s offers, and the railroad 

initiated condemnation proceedings through a petition filed with the New Jersey Department of Transportation, 

which referred the contested case to an Administrative Law Judge (ALJ).

Intermodal proposed to use the property as a parking facility for the Secaucus Junction passenger rail 

station, a use it contended was more compatible with the public interest. The ALJ precluded Intermodal from 

invoking the prior public use doctrine because the property was not being used for a public purpose and was not 

zoned to permit a parking facility. Intermodal succeeded in having the property rezoned, but the ALJ deemed this 

irrelevant since Intermodal presented no evidence that any entity was willing to enter into a contract for public 

parking. In contrast, the railroad’s condemnation would advance the public interest in several ways, including 

alleviating highway congestion, reducing dwell time, and increasing railroad efficiency. The ALJ also disagreed 

with Intermodal’s contention that the statutory provision permitting a taking only “as exigencies of business may 

demand” required the railroad to demonstrate an urgent need. Instead, the ALJ found that the language permitted 

condemnation when necessary to meet business demands, although more than mere convenience was required to 

justify the taking. In light of the projected rapid growth of intermodal business and the planned Crescent Corridor 

project, the ALJ concluded that Norfolk Southern had satisfied this requirement.

Intermodal appealed, and the Appellate Division affirmed the ALJ’s findings with respect to the two issues 

in dispute here. Norfolk S. Ry. Co. v. Intermodal Props., LLC, 424 N.J. Super. 106 (App. Div. 2012). The panel 

agreed with the ALJ’s factual findings, concluding that permitting the railroad to exercise its eminent domain power 

was not incompatible with the public interest. The panel also agreed that Intermodal was precluded from presenting 

evidence of its proposed future use and could not invoke the prior public use doctrine. Finally, the panel adopted the 

ALJ’s interpretation of “exigency,” finding that the railroad’s foreseeable future needs were reasonable business 

needs requiring acquisition of Intermodal’s property. The Court granted Intermodal’s petition for certification. 210 

N.J. 261 (2012). 
2

HELD: Norfolk Southern’s proposed use meets the requirement of N.J.S.A. 48:3-17.7 that the taking be “not 

incompatible with the public interest.” Intermodal may not invoke the prior public use doctrine because it lacks the 

power to condemn and its proposed use is neither prior nor public. As used in N.J.S.A. 48:12-35.1, “exigencies of 

business” does not necessitate an urgent need for land in order to justify a taking. Rather, it limits a railroad’s power 

to condemn to those circumstances where the general needs or ordinary course of business require it.

1. N.J.S.A. 48:3-17.7 requires that a railroad’s taking by eminent domain be “not incompatible with the public 

interest.” New Jersey courts have found that railroads and their related facilities are public uses. The question of 

whether a property owner can defeat a railroad’s exercise of eminent domain by introducing proofs that the owner’s 

proposed use would better serve the public interest requires analysis of the prior public use doctrine. That doctrine 

prohibits condemnation where a proposed use will either destroy an existing public use or prevent a proposed one. 

The property owner invoking the doctrine also must have the power to condemn. At the time the railroad sought to 

condemn Intermodal’s property, Intermodal’s use was not public, and its successful rezoning is irrelevant because 

there is no evidence the proposed future use would be anything but a private venture. Intermodal cannot invoke the 

prior public use doctrine because it does not have condemnation authority and its proposed use, a speculative plan 

for a profit-making parking facility, is neither prior nor public. Finally, N.J.S.A. 48:3-17.7 focuses on the 

condemnor’s proposed use and does not require consideration of any alternative proposals that may be more in the 

public interest. Norfolk Southern’s proposed use meets the statutory requirement. (pp. 24-30) 

2. When interpreting statutory language, a court’s primary task is to understand and give effect to the Legislature’s 

intent, looking first to the plain language of the statute and turning to other interpretive aids in the face of ambiguity. 

N.J.S.A. 48:12-35.1 limits a railroad’s power to condemn to circumstances “as exigencies of business may demand.” 

Modern understandings of words or phrases may not be appropriate guides in statutory interpretation where, as here, 

the statute in question was crafted more than a century ago. Modern day definitions of “exigency” are inconsistent 

and lead to contrary conclusions, requiring consideration of related legislation and decisions published during the 

timeframe when the phrase was chosen by the Legislature. Review of these materials reveals that, in the past, the 

phrase “exigencies of business” was regarded as a term of art used to mean the general needs or ordinary course of 

business, rather than the modern day suggestion of an urgent or pressing need, which is derived from contemporary 

criminal jurisprudence. The phrase “exigencies of business” must be interpreted in accordance with the manner in 

which it was used when the language was chosen. This interpretation is the most sensible one in light of the way in 

which railroads are developed and built, requiring long-term planning. There is no basis on which to conclude that 

the Legislature intended to demand that railroads prove an urgent, immediate, or emergent need for land as a 

prerequisite to exercising their statutory condemnation authority. (pp. 30-42)

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN and PATTERSON; and JUDGES

RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE HOENS’s opinion. 
SUPREME COURT OF NEW JERSEY

A-117 September Term 2011

070240

NORFOLK SOUTHERN RAILWAY 

COMPANY, a Virginia 

Corporation,

Petitioner-Respondent,

v.

INTERMODAL PROPERTIES, LLC,

Respondent-Appellant.

Argued May 14, 2013 – Decided August 6, 2013

On certification to the Superior Court, 

Appellate Division, whose opinion is 

reported at 424 N.J. Super. 106 (2012).

Eric D. McCullough argued the cause for 

appellant (Waters, McPherson, McNeill, 

attorneys; Mr. McCullough and James P. 

Dugan, of counsel).

Alan P. Fox argued the cause for respondent 

(Capehart & Scatchard, attorneys; Mr. Fox

and John K. Fiorilla, of counsel).

Carl A. Wyhopen, Deputy Attorney General, 

submitted a letter on behalf of respondent

Commissioner of Transportation (Jeffrey S. 

Chiesa, Attorney General of New Jersey, 

attorney).

Nancy Winkelman submitted a brief on behalf 

of amici curiae The American Short Line & 

Regional Railroad Association, The 

Association of American Railroads, 

Consolidated Rail Corporation, CSX 

Transportation, Inc., and The New Jersey 

Short Line Railroad Association (Schnader 

Harrison Segal & Lewis, attorneys).
2

JUSTICE HOENS delivered the opinion of the Court.

The State’s power to condemn private property is strictly 

limited by the constitutional rights of citizens to be free of 

takings without just compensation. See U.S. Const. amend. V; 

N.J. Const. art. IV, § 6, ¶ 3. Moreover, as a further means to 

protect the constitutional rights of the people, the Legislature 

enacted the Eminent Domain Act of 1971, N.J.S.A. 20:3-1 to -50,

to govern the manner in which the State may exercise its

authority to condemn.

In addition to the general statutory framework embodied in 

the Eminent Domain Act, our Legislature has enacted other 

statutes that govern the exercise of the power of eminent 

domain, including two that are at the center of the dispute now 

before this Court. The first of these statutes authorizes

public utilities, including railroads, to exercise the power of 

eminent domain and defines the circumstances and the manner in 

which they may do so. See N.J.S.A. 48:3-17.6 to -17.8. The 

second of these statutes applies specifically to railroads and

further defines the extent of their authority to condemn. See

N.J.S.A. 48:12-35.1.

This appeal arises from the exercise of the power of 

eminent domain by plaintiff, Norfolk Southern Railway Company, 

as a means to take property owned by defendant, Intermodal 

Properties, LLC, for use in the expansion of the railroad’s 
3

facility in Secaucus. That exercise by the railroad of its

authority to condemn was challenged by defendant, leading to 

decisions by an Administrative Law Judge (ALJ) and by the 

Appellate Division interpreting the two statutes and giving rise 

to the two questions of statutory interpretation that are now 

before this Court. 

First, we are called upon to determine whether the 

railroad’s taking of the property met the statutory proscription 

that it be “not incompatible with the public interest[.]” 

N.J.S.A. 48:3-17.7. Second, we are asked to consider whether 

the railroad demonstrated that the taking of defendant’s 

property was occasioned by the “exigencies of business” within 

the meaning of that phrase as it is used in the statute that 

governs takings by railroads in particular. N.J.S.A. 48:12-

35.1. 

I.

Norfolk Southern owns a large tract of land in Secaucus, 

comprised of between 240 and 275 acres, where it operates a 

freight facility known as Croxton Yard (Croxton). Croxton is an 

intermodal freight facility, meaning that it accommodates 

transportation of goods by more than one form, or modality, of 

carrier, as for example, by rail and by truck. At Croxton,

freight containers are transferred between trains and tractor-
4

trailer trucks to facilitate the transport of freight to its

eventual destination. 

Norfolk Southern operates the Croxton facility nearly 

around the clock, spanning twenty-four hours each weekday and 

sixteen hours each day on weekends. According to a 2007 

estimate, approximately 1,500 to 2,000 trucks then moved through 

Croxton each day, accounting each month for approximately 18,000 

lifts, a term that refers to the loading and unloading of a 

container from a train.

Containers are off-loaded at Croxton and moved to parking 

spaces within the yard prior to being loaded onto the next 

transportation modality for distribution. Parking spaces are, 

on average, filled with containers and trailers to eighty 

percent of capacity, reaching one hundred percent full to

capacity on Monday mornings. In addition, elsewhere in the 

facility, there is an area where empty containers are stored 

while waiting to be reloaded onto trains as space becomes 

available. In 2007, there were an average of 400 to 500 empty 

containers parked in that area each week, with the total 

sometimes reaching 1,000. 

Rail carriers such as Norfolk Southern compete for 

customers, requiring that they maintain efficiency. One measure 

of efficiency that is significant to customers is dwell time. 

As the ALJ found, dwell time is 
5

a measurement of how long it takes for a 

truck to enter a yard and depart the yard 

[and] is also used as a measurement of the 

amount of time that a container stays in the 

yard from the time it is off-loaded from the 

train until it is picked up by the carrier. 

. . . If dwell time increases significantly, 

it can reach a point where it is no longer 

profitable for customers to ship by 

intermodal and they can decide to move cargo 

to another carrier or by truck. 

In 2002, Norfolk Southern concluded that its intermodal 

business in general was expanding rapidly and that, in order to 

meet the anticipated demand, it would need to expand the Croxton 

facility. That conclusion was based on a variety of 

considerations. First, the existing traffic at Croxton had 

already led to double-parking of containers, which made it 

difficult to move trucks around the yard and increased dwell 

time. Second, Norfolk Southern projected that freight growth in 

New Jersey, by some estimates, would double within ten to 

fifteen years and, according to other projections, would 

continue to grow for twenty-five years. Third, the railroad 

projected that the overall traffic using Croxton would increase 

based in part on forecasts prompted by a new undertaking known 

as the Crescent Corridor Project. That project was a long-range 

plan by the railroad to expand rail service from ports in New 

Jersey and New York into the southeastern and western regions of 

the United States and thereafter into Mexico. 
6

Norfolk Southern concluded that the solution to all of its 

growth concerns was to increase its facilities at Croxton. 

Moreover, the railroad determined that it would need to acquire 

nearby or adjacent properties in order to accommodate the 

expansion at Croxton. As a result, in May 2004, the railroad’s 

managers decided to sell a piece of property across from Croxton 

that was owned by the railroad and to use the proceeds to 

acquire three properties they believed were needed for the 

expansion of their facility. One of those properties is owned 

by Intermodal. 

Intermodal’s property, comprising approximately 5.99 acres, 

is adjacent to Croxton. It is currently the site of an 80,000 

square foot warehouse which, at all times relevant to this 

dispute, was leased by Intermodal to a company that operated a 

freight-forwarding business. Acquisition of Intermodal’s 

property would allow the railroad to create an additional 291 

container parking spaces and would connect Croxton with another 

small parcel of land on the other side of Intermodal’s property 

that is owned by Norfolk Southern. In addition, because

Intermodal’s property is close to Croxton’s tracks, it would not 

increase dwell time and would improve the efficiency of the 

operations at Croxton. 

At the time when Norfolk Southern embarked on its effort to 

acquire the property, the railroad projected it would need the 
7

Intermodal property within five years. Norfolk Southern entered 

into negotiations to acquire the Intermodal property, but its 

offers were rebuffed. By September 2005, Intermodal had 

informed the railroad that it was not interested in selling the 

property. As a result, Norfolk Southern initiated condemnation 

proceedings through a petition filed with the New Jersey 

Department of Transportation (NJDOT) as a means to acquire the 

Intermodal property.

A.

The matter was deemed to be a contested case, referred by 

NJDOT to the Office of Administrative Law (OAL) and assigned to 

an ALJ. Before commencing the hearing on the railroad’s 

petition, the ALJ considered, and decided, the two issues that 

were raised by Intermodal and are now before this Court. The 

ALJ’s determination of those issues, to a large extent, shaped 

the testimony and evidence that the parties offered.1 

 

1 The ALJ also addressed an issue arising from the amendment,

effective January 13, 2008, of one of the statutes governing 

this dispute. That is, N.J.S.A. 48:12-35.1 was amended to 

include a requirement that a railroad seeking to condemn 

property establish that “alternative property suitable for the 

specific proposed use of the property to be taken is unavailable

. . . and that the interest in the property to be taken does not 

exceed what is necessary for the proposed use[.]” L. 2007, c.

290, § 1. The ALJ agreed with Norfolk Southern that the 

amendments were preempted by federal law and therefore precluded 

Intermodal from presenting any evidence on the issue. The 

Appellate Division reversed, determining that the amendments 

were not preempted by federal law, and remanded the matter to 

the OAL for further proceedings. Norfolk S. Ry. Co. v. 
8

Intermodal’s first argument focused on the statutory 

command that the taking be “not incompatible with the public 

interest[.]” N.J.S.A. 48:3-17.7. In particular, Intermodal 

sought to offer evidence that it proposed to use its property as 

a parking facility that would serve the nearby Secaucus Junction 

passenger rail station. It argued that its proposed use would 

be more compatible with the public interest than the use 

proposed by Norfolk Southern and that the railroad therefore 

should be prohibited from exercising the power to condemn. 

The ALJ rejected Intermodal’s proffer for two reasons. 

First, observing that Intermodal’s property was not zoned for 

use as a parking facility, the ALJ concluded that Intermodal

could not demonstrate that its property could be used for the 

purpose it proposed. Second, the ALJ ruled that, pursuant to

the prior public use doctrine, evidence of the type Intermodal 

sought to present would only be relevant if the property were

already being used to serve a public purpose. Because 

Intermodal could not meet that test, the ALJ barred it from 

offering any evidence relating to the property’s potential use 

as a parking facility.

 

Intermodal Props., LLC, 424 N.J. Super. 106, 115, 124-128 (App. 

Div. 2012). Because the railroad did not file a cross-petition 

challenging this aspect of the Appellate Division’s decision, 

the issue is not before us.
9

Intermodal’s second argument was based on the statutory 

authorization that only permitted a taking “as exigencies of 

business may demand[.]” N.J.S.A. 48:12-35.1. Specifically, 

Intermodal asserted that the statutory language required the 

railroad to demonstrate that there was an emergency before it 

could exercise the power to condemn. The ALJ rejected that 

interpretation, concluding that the statute did not limit a 

taking to emergencies, and reasoning that the phrase was used 

instead to permit the railroad to condemn property as the needs 

of its business reasonably demanded.

After making those preliminary legal determinations, the 

ALJ conducted numerous hearings, starting in November 2007, but 

held on non-sequential days. During the delays between the 

hearings, Intermodal successfully petitioned the New Jersey 

Meadowlands Commission (Meadowlands Commission) to have its

property rezoned from the Intermodal B zone to the 

Transportation Center zone. The effect of that zoning change 

was that Intermodal’s proposed commuter parking facility for the 

Secaucus Junction station would be a permitted use.2 

Following the completion of the hearings and consideration 

of the testimony and evidence presented by the parties, the ALJ 

issued a comprehensive written decision on December 11, 2009. 

 

2 Norfolk Southern appealed the decision of the Meadowlands 

Commission changing the zone, but the decision was affirmed by 

the Appellate Division in an unpublished opinion.
10

As it relates to the issues on appeal, that decision separately 

analyzed whether the taking of the land by the railroad was “not 

incompatible with the public interest” and whether the railroad 

was taking Intermodal’s property because of the “exigencies of 

business[.]” In summary, the ALJ answered both questions in 

favor of Norfolk Southern. 

First, in determining whether the taking was “not 

incompatible with the public interest,” the ALJ relied heavily 

on the testimony of Susan Gruel, a licensed planner who 

testified on the railroad’s behalf. Gruel testified that the 

location of Intermodal’s property, which is near the freight 

facility and has direct access to the New Jersey Turnpike, made 

it particularly suitable to promote intermodal access. She 

opined that the taking for the expansion of Croxton is 

compatible with the objectives of the Meadowlands Master Plan, 

the Hudson County Master Plan, and other regional economic 

growth plans. 

Gruel also testified that the taking would further the 

goals of other local, regional, and state-wide plans, including 

the Hudson County Strategic Revitalization Plan, which sought to 

upgrade intermodal systems and to find alternatives to truck 

traffic; the New Jersey State Development and Redevelopment 

Plan, which was designed to promote economic development, 

develop transportation alternatives, and protect the 
11

environment; and the Regional Transportation Plan-Access and 

Mobility 2003 for North Jersey, which also noted the need to 

increase rail facilities and reduce reliance on trucks. 

In addition, Gruel testified that the condemnation would 

advance the goals set by the NJDOT. Specifically, she found 

support in two NJDOT documents. First, she noted that a study 

referred to as Portway, which was intended to coordinate 

infrastructure projects to improve transportation access between 

Newark and Elizabeth, projected a significant increase in the 

need to move goods and identified a corollary need to enhance 

rail facilities as a means to minimize environmental impacts. 

Second, she observed that in the Update Report of the New Jersey 

State Rail Planning Process, NJDOT recommended the development 

of rail services as a way to save energy and reduce highway 

congestion. 

During the hearings before the ALJ, Intermodal attempted to 

question Gruel about whether the rezoning of its property 

demonstrated that the Meadowlands Commission viewed a parking 

facility as a better planning option for the property than the 

one proposed by the railroad. The ALJ precluded that line of 

questioning because Intermodal had not presented any evidence 

that the State or any other public entity was willing to enter 

into a contract with Intermodal to provide public parking for

Secaucus Junction. Therefore, the ALJ deemed Intermodal’s line 
12

of questioning to be irrelevant because Intermodal could not 

claim the protection of the prior public use doctrine.

Ultimately, in deciding whether Norfolk Southern had 

demonstrated that the taking was “not incompatible with the 

public interest[,]” N.J.S.A. 48:3-17.7, the ALJ concluded that 

the condemnation of Intermodal’s property would advance the 

public interest in several ways. The ALJ found support in the 

plans and the studies cited by Gruel as well as in the other 

evidence that the railroad had presented. In particular, she 

found that the taking would further the realization of the 

Crescent Corridor project which, in turn, would advance the 

public interest by alleviating congestion on the highways. 

Moreover, the ALJ recognized that the taking would further the 

goal of reducing dwell time. In this regard, she found that 

dwell time was a significant consideration, observing that in 

January 2007, Norfolk Southern had upgraded the system for 

trucks entering its yard from the access road, installing an 

automated gate and adding lanes, in an effort to reduce dwell 

time. Finally, the ALJ credited testimony that the expansion 

also would increase railroad efficiency and decrease pollution 

by lessening the time trucks were on the road. In short, the 

ALJ concluded that the condemnation was “clearly in the public 

interest.”
13

Second, the ALJ considered the arguments concerning whether 

the condemnation was justified by the exigencies of the 

railroad’s business. See N.J.S.A. 48:12-35.1. In analyzing 

whether the railroad had met that statutory test, the ALJ 

reiterated her pre-hearing order setting forth her 

understanding, in accordance with a dictionary definition, that

the term “exigency” did not mean emergency but, instead, meant

“the need, demand or requirement intrinsic to a circumstance or 

condition.” Even so, the ALJ commented that “something more is 

required beside mere convenience for the railroad” in order to 

justify Norfolk Southern’s taking of the Intermodal property.

The ALJ then determined that, based on the proofs presented

during the hearings, Norfolk Southern had satisfied this 

interpretation of the statutory requirement. She first relied 

on studies and testimony that projected rapid growth in 

intermodal business over the next ten to thirty years. She 

included in her analysis governmental and independent studies 

that advocated for growth in intermodal traffic as a way to 

alleviate roadway congestion and address environmental concerns.

As part of the consideration of these studies, the ALJ 

recognized that the recent general economic downturn had reduced 

intermodal traffic and that future levels of intermodal traffic 

could not be precisely predicted. Nonetheless, the ALJ rejected 

two opinions offered by Intermodal’s expert directed to whether 
14

the railroad had met the statutory requirement that the taking 

be undertaken because of the exigencies of business. Those 

opinions were that the traffic expansion projected by the 

independent studies was flawed and that if intermodal traffic 

were to increase, that additional traffic would not be directed 

to Croxton. 

The ALJ rejected both opinions, explaining that

Intermodal’s expert had offered no supporting evidence to 

substantiate either of those views. On the contrary, the ALJ 

observed that, in transportation planning, it is not unusual to 

project fifteen to thirty years into the future. In evaluating 

Norfolk Southern’s projections, the ALJ found that the evidence 

supported the railroad’s contention that intermodal traffic 

would expand to the point where the land it sought to acquire

would be needed at Croxton within the next ten years.

In addition, the ALJ found that the Crescent Corridor 

project would add to those growth projections, thus requiring an 

expansion of Croxton to facilitate the demands created by that 

project. As part of her consideration of that evidence, the ALJ 

described the enormous geographic and financial scope of the 

Crescent Corridor project. Moreover, she considered, and 

rejected, two challenges that Intermodal raised to the evidence 

concerning the Crescent Corridor. 
15

First, the ALJ recognized that Intermodal contended that 

there was no assurance that the project would actually be built 

as envisioned. After acknowledging that the ultimate success of 

the Crescent Corridor project is an open question, however, the 

ALJ found that Norfolk Southern was committed to the project and 

that its goals were sound. 

Similarly, the ALJ considered Intermodal’s assertion that, 

if built, the Crescent Corridor project should not reach 

Croxton, but instead should terminate in Middlesex County where 

there is an abundance of available warehouse space. The ALJ

rejected that argument because Intermodal had not investigated 

whether the railroad’s customers would prefer that their freight 

be off-loaded in Middlesex County or whether that plan might 

cause an increase in truck traffic in New Jersey. Balancing all 

of these considerations, the ALJ concluded that Norfolk Southern 

would require the Intermodal property for the success of the 

Crescent Corridor project and that the railroad should not be 

expected to wait until that “project is up and running to begin 

condemnation proceedings.”

In deciding whether the railroad had demonstrated that the 

taking was justified by the exigencies of its business, the ALJ 

found that Norfolk Southern had presented sufficient evidence 

that intermodal traffic will increase and that the Crescent 
16

Corridor project, in particular, presented “sound economic and 

environmental reasons” to move forward with the condemnation. 

In summary, therefore, the ALJ concluded that Norfolk 

Southern had demonstrated by a preponderance of the evidence 

that its taking of Intermodal’s property satisfied both the 

statutory command that it be “not incompatible with the public 

interest[,]” N.J.S.A. 48:3-17.7, and that it be demanded by the 

exigencies of the railroad’s business, see N.J.S.A. 48:12-35.1. 

B.

Because the NJDOT Commissioner did not modify or reject the 

ALJ’s decision, it became a final decision by operation of law. 

See N.J.S.A. 52:14B-10(c). Intermodal then filed an appeal with 

the Appellate Division. R. 2:2-3(a)(2). In a published 

opinion, the Appellate Division affirmed the ALJ’s findings of 

fact and conclusions of law respecting the two issues in dispute 

before us, Norfolk S. Ry. Co. v. Intermodal Props., LLC, 424 

N.J. Super. 106, 129 (App. Div. 2012), and remanded the matter

for proceedings not germane to our analysis, id. at 124-28. 

First, in determining that the ALJ correctly concluded that 

the taking was not incompatible with the public interest, the 

Appellate Division pointed to much of the evidence that the ALJ 

had found persuasive. In particular, the appellate panel looked 

to the evidence supporting expansion of rail and intermodal 

facilities found in the Meadowlands Master Plan and the Hudson 
17

County Master Plan, as well as the projections for continued 

growth found in the New Jersey Turnpike Authority’s Regional 

Transportation Plan and NJDOT’s Portway study. Id. at 116-17. 

The appellate court also noted, quoting the ALJ, that 

expanding Croxton would be beneficial because it would reduce 

dwell time, thus “‘lessen[ing] the amount of pollutants that 

[trucks] emit into the air.’” Id. at 117. The court found 

further support in the ALJ’s findings that the Crescent Corridor 

project, which is consistent with the Meadowlands Master Plan, 

would require expansion of Croxton, again helping to alleviate 

“‘traffic congestion and air emissions.’” Id. at 117-18. 

Taking those facts together with the “well established 

understanding that railroads serve a public purpose[,]” the 

Appellate Division concluded that permitting the railroad to 

exercise the power of eminent domain was not incompatible with 

the public interest. Id. at 118. 

As part of its analysis, the appellate panel concurred with 

the ALJ’s refusal to permit Intermodal “to present evidence 

showing that the use of [its] property as a commuter parking lot 

would be of greater benefit to the public than the use of the 

property for intermodal freight operations.” Ibid. Both 

because, at the time the railroad sought to take the property,

it was not zoned for use as a parking facility, and because the 

subsequent rezoning of the property provided “no evidence 
18

indicating that any State or local entity was willing to enter 

into an agreement with Intermodal to develop the property as a 

commuter parking lot[,]” id. at 118-19, the Appellate Division 

agreed that Intermodal could not invoke the prior public use 

doctrine. Not only was the property not being used for a public 

purpose at the time Norfolk Southern filed its condemnation 

petition, but, as the appellate court commented, even after the 

zoning change, the “development of the property as a commuter 

parking lot was speculative, at best.” Id. at 119. 

Second, the Appellate Division addressed the statutory 

provision that permits railroads to condemn property as the

“exigencies of business may demand.” Id. at 120. Rejecting 

Intermodal’s contention that the language of the statute 

requires an urgent or emergency situation, the court instead

agreed with the ALJ’s interpretation of “exigency.” Ibid. In 

doing so, the appellate court adopted the dictionary definition 

used by the ALJ, through which the phrase is understood to mean 

“‘the need, demand, or requirement intrinsic to a circumstance, 

[or] condition’ such as ‘the exigencies of city life[.]’” Ibid.

(quoting Random House Webster’s Unabridged Dictionary (2d ed. 

2006)). 

Applying standard tools of statutory construction, the 

panel explained that it was “convinced that the Legislature did 

not intend to limit the exercise of the condemnation power in 
19

N.J.S.A. 48:12-35.1 to emergency situations, [but that] a 

railroad may take private property by the exercise of the power 

of eminent domain as the needs of its business may reasonably 

demand.” Id. at 120-21. That conclusion was based in large 

measure on the appellate court’s recognition that the time 

involved in effectuating the condemnation process and in 

complying with the other requirements embodied in the statute is 

lengthy, implying that demonstrating an emergency need was not 

part of the Legislature’s intent. Id. at 121. Rather, the 

railroad’s decision to condemn property is “more often than not 

the result of long-term planning[,]” which, the panel reasoned,

indicates the Legislature did not intend to limit takings to 

emergency situations. Ibid.

In addition to agreeing with the ALJ’s analysis of the 

statutory language, the appellate court found sufficient 

credible evidence in the record to support the ALJ’s finding 

that the railroad’s foreseeable future needs, based on its 

growth and expansion plans, were “reasonable needs of . . . 

business demand[ing] the acquisition of Intermodal’s property.” 

Id. at 122. 

Intermodal filed a petition for certification, which we 

granted. 210 N.J. 261. We thereafter granted leave to the 

American Short Line & Regional Railroad Association, the 

Association of American Railroads, Consolidated Rail Corp., CSX 
20

Transportation, Inc., and the New Jersey Short Line Railroad 

Association to participate in the appeal as amici curiae.3

II.

The parties essentially reiterate the arguments that they 

raised before the ALJ and the Appellate Division. 

Intermodal asserts that the ALJ erred in precluding it from 

offering evidence that its plan to build a parking facility for 

the nearby commuter rail station was more compatible with the 

public interest than the use to which the railroad planned to 

put its property. As part of that argument, Intermodal contends 

that both the ALJ and the Appellate Division erred in their 

analysis of the prior public use doctrine. That erroneous 

analysis, Intermodal asserts, amounted to an interpretation of 

the governing statute that effectively authorizes the railroad 

to take private property regardless of whether the owner’s 

alternative purpose might create a greater potential benefit to 

the public. Pointing to its successful effort to have the 

Meadowlands Commission rezone its property for use as a parking 

 

3 The NJDOT Commissioner filed a letter with this Court 

expressing opposition to Intermodal’s petition for 

certification. Following our grant of that petition, the NJDOT 

Commissioner filed a statement in lieu of brief. See R. 2:6-

4(c). In that statement, the Commissioner expressed the view 

that NJDOT was not required to participate, that the parties had 

adequately briefed the issues, and that NJDOT had no vested 

interest in the outcome. Notwithstanding that position, the 

Commissioner offered the opinion that the decision of the ALJ 

should be affirmed, as it was neither arbitrary nor capricious.
21

facility, Intermodal asserts that it was deprived of due process 

when the ALJ prevented it from cross-examining the railroad’s 

planner on its proposed competing use. 

Intermodal also takes issue with the interpretation of the 

statute relating to the exigencies of the railroad’s business. 

It argues that the statute contemplates a present and 

identifiable need for the property and that the reading of the 

statute adopted by the ALJ and affirmed by the Appellate 

Division is too deferential to the railroad to be consistent 

with the Legislature’s intent. Recognizing that long-term 

planning is needed for railroad development, Intermodal asks 

this Court to interpret the statutory language to require 

railroads to “show a cognizable and definite need or requirement 

for the taking.” In short, Intermodal urges us to conclude that 

the Legislature chose the word “exigency” with the purpose of 

implying a sort of immediacy or urgency, as would be consistent 

with the ordinary meaning of that term, leading to the 

conclusion that the railroad’s general concern for its long-term 

needs falls short of what the statute demands. 

Norfolk Southern urges this Court to affirm the judgment of 

the Appellate Division in all respects. First, it asserts that 

Intermodal’s effort to offer the potential use of the rezoned 

property is based on a misreading of the precedents permitting 

evaluation of another public use. As the railroad understands 
22

the law, only when property was being put to a public purpose at 

the time of the taking does the alternative use of the property 

become relevant to the attempt to condemn. Because Intermodal’s 

property was not being put to a public purpose at the time when 

the railroad sought to take it, and because any future public 

purpose would be speculative, Norfolk Southern argues that the 

ALJ correctly precluded Intermodal from offering evidence 

relating to the plan to turn the property into a parking 

facility for the commuter train station.

Second, the railroad asserts that the ALJ and the Appellate 

Division correctly understood and applied the statutory phrase 

“exigencies of business.” Arguing that the Legislature must 

have recognized the need for long-term planning relating to 

railroad expansion, Norfolk Southern contends that “exigency” 

cannot mean “emergency,” but instead must be related to 

projections of future growth and needs.

Amici Curiae, a group of freight railroad companies 

operating in New Jersey and related trade organizations, offer 

this Court historical background about railroads and the 

condemnation power granted to them. They urge us to consider 

the vital importance of railroads, particularly as a means to 

relieve congestion on our highways, reduce engine emissions, 

conserve energy, and improve safety of the traveling public. 

They explain that the process involved in expanding railroads is 
23

lengthy and complex, and they assert that the interpretation of 

the statutory phrase “exigencies of business” must be consistent 

with these practical realities. In summary, amici urge this 

Court to affirm the judgment of the Appellate Division in its 

entirety. 

III.

This appeal calls upon us to consider two statutory 

provisions that relate to the power that the Legislature has 

vested in public utilities and, more particularly, in railroads,

to acquire property through exercising the power of eminent 

domain. First, we address the limitation placed on the exercise 

of the power to condemn by any public utility through the 

requirement that the taking be “not incompatible with the public 

interest.” N.J.S.A. 48:17-7. Second, we consider the 

limitation imposed by the requirement that, when the 

condemnation power is exercised by a railroad, it only be 

permitted to take property to the extent that the “exigencies of 

business may demand[.]” N.J.S.A. 48:12-35.1. 

A.

We need not recite the rich body of principles based upon 

our constitution and statutory law that inform every 

consideration of the exercise of the power of eminent domain, 

much of which is familiar and well-established. Instead, we 

focus only on the two specific statutory phrases before the 
24

Court. As a result, the debate before us is indeed a narrow one 

because the parties do not disagree that the railroad’s taking 

is for a proposed public use. Instead, they argue only about 

the evidence relevant to the requirement that the taking be not 

incompatible with the public interest and the meaning of the 

phrase “exigencies of business.” 

Turning first to the question about the evaluation of 

whether the proposed use is not incompatible with the public 

interest, the focus of the parties is solely on whether 

Intermodal should have been permitted to offer evidence 

concerning its different proposal for the use of its property. 

We have addressed previously how to evaluate whether a 

proposed use is a public use. See Twp. of W. Orange v. 769 

Assocs., LLC, 172 N.J. 564, 573 (2002). That is, we have 

concluded that, “‘public use’ is synonymous with ‘public 

benefit,’ ‘public advantage,’ or ‘public utility.’” Ibid. 

(quoting State Highway Comm’r v. Totowa Lumber & Supply Co., 96 

N.J. Super. 115, 119 (App. Div. 1967)). In particular, we 

described a public use in terms of one “that tends to enlarge 

resources, increase the industrial energies, and . . . 

manifestly contributes to the general welfare and the prosperity 

of the whole community.” Ibid. (internal quotation marks 

omitted). 
25

Moreover, we have recognized that railroads and related 

terminal facilities meet the requirements for being a public 

use. See Twp. of Weehawkin v. Erie R.R. Co., 20 N.J. 572, 581-

82 (1956). That is, railroads are “bound to accommodate all 

freight and passenger traffic which seek its service[,]” and 

“[r]eceiving and terminal facilities are necessary adjuncts to 

the service rendered.” Id. at 581. “The transportation of 

freight constitutes a public franchise, . . . and [a] proposed 

[terminal] facility is a necessary implement[.]” Id. at 581 

(internal citation omitted). “The public use thus manifested is 

not diluted because the facility may only be enjoyed by a 

portion of the public.” Id. at 582. Railroads are “bound to 

extend the[ir] service to all who have reasonable need for the 

proposed facility depending upon its capacity for transshipment 

of freight.” Ibid. Therefore, railroads “should not be so 

strictly construed as to disallow growth and progress to meet 

the competitive forces of the time.” Ibid. 

The question before us is whether a property owner can 

defeat a railroad’s exercise of eminent domain by introducing

proofs that the owner’s proposed use of its property would 

better serve the public interest than would the railroad’s 

proposed use thereof. That assertion requires us to consider

the subsidiary question raised by the parties concerning the 
26

evaluation by the ALJ and the Appellate Division of the prior 

public use doctrine. 

The prior public use doctrine has a specific meaning and 

application. It arose in the context of disputes over land 

between two entities, each of which had condemnation power. Id.

at 579. The circumstances we encountered in Weehawken aptly 

illustrate the concern that gave rise to the doctrine. There, a

railroad owned two parcels and the municipality desired to 

condemn one for use as a baseball field and other recreational 

purposes. Id. at 578. In that context, this Court recognized 

that each litigant had the authority to condemn and each 

asserted that it intended to use the property for a public 

purpose. We also recognized that in that unique circumstance, 

in the absence of either a rule of law or special legislation 

designed to end the dispute, the two entities could engage in an 

endless round of condemnation and re-condemnation, with each 

seeking to acquire the property by asserting its power of

eminent domain. Id. at 579.

In order to create certainty, this Court crafted the prior 

public use doctrine, which operates to “den[y] exercise of the 

power of condemnation where the proposed use will destroy an 

existing public use or prevent a proposed public use unless the 

authority to do so has been expressly given by the Legislature 

or must necessarily be implied.” Ibid. The application of the 
27

doctrine, therefore, is both specific and narrow. It does not 

automatically apply merely because property is already being 

used for a public purpose. See Texas E. Transmission Corp. v. 

Wildlife Preserves, Inc., 48 N.J. 261, 268-69 (1966) (denying 

“public-spirited” conservation group protection of prior public 

use doctrine for private land voluntarily devoted to use as 

wildlife preserve because conservation group lacked condemnation 

authority). 

That is, a property owner that devotes its property to a 

worthy public purpose, unless it also has the power to condemn, 

cannot avail itself of the protections of the prior public use 

doctrine. Id. at 267-68. Moreover, as we explained, if the 

prior public use doctrine does not apply, “no comparative 

evaluation of two public uses, one existing and one proposed, 

need be undertaken in order to determine which should prevail as 

the paramount use.” Id. at 273. Therefore, an owner cannot 

look to the prior public use doctrine to defend against a 

condemnation action absent a pre-existing, public use coupled 

with the power of eminent domain, nor may it suggest that there 

is a potential or future proposed use that might be more 

beneficial than the proposed use put forth by the condemnor.

With these precedents to guide us, our evaluation of 

Intermodal’s argument is clear. First, Intermodal’s use of the 

property at the time that the railroad sought to exercise the
28

power of eminent domain was not a public use. The record 

reflects that, at the time, the Intermodal property was being 

used by private entities for truck parking. Moreover, at the 

time, the property could not have been devoted to the public use 

that Intermodal has identified because it would have been 

inconsistent with the zoning ordinance. Nor is it relevant that 

Intermodal succeeded in rezoning the property as part of its 

effort to potentially achieve its stated public purpose of 

creating a parking facility for the nearby commuter train 

station. Although achieving that purpose might have served the 

public interest in some sense, Intermodal has not suggested that 

it would be anything but a privately owned and profit-driven 

venture. Intermodal cannot claim the protection of the prior 

public use doctrine because the use to which it points is 

neither a prior use nor a public one, but is instead a 

speculative, future plan for a profit-making venture. 

More fundamentally, the prior public use doctrine would 

only apply if the property owner itself had the power of eminent 

domain, as if, for example, the municipality had already taken 

Intermodal’s property for a parking facility. Because

Intermodal lacks the power to condemn, the prior public use 

doctrine can have no application to this dispute over the 

railroad’s exercise of its power of eminent domain. 
29

Finally, the language of the statute speaks only to the 

requirement that the taking be “not incompatible with the public 

interest.” N.J.S.A. 48:3-17.7. That statutory language demands 

that the focus be on the proposed use identified by the 

condemnor; as we have held, in the absence of a previously 

existing public use, it does not permit a comparative analysis 

of a competing public purpose that an owner proposes. See Texas 

E. Transmission Corp., supra, 48 N.J. at 273. That is, the 

statute requires evaluation of whether the purpose proposed by

the condemning authority is incompatible with the public 

interest, not whether there is some alternative proposal that 

might be more in the public interest. 

In the end, Intermodal’s interpretation of the statute 

asked the ALJ to engage in the latter analysis, seeking 

permission to offer a plan that Intermodal thought would be a

better or more worthy purpose. Whether, in fact, the plan 

proposed by Intermodal would have been a better one than that 

which the railroad proposed, however, is of no moment in light 

of the clear language that the Legislature chose when creating 

the boundaries within which the railroad may exercise the power 

of eminent domain. We, therefore, detect no error in the 

analysis of the ALJ or in the judgment of the Appellate Division

concluding that the railroad’s proposed use of the property was 
30

“not incompatible with the public interest” as defined by the 

statute.

B.

The second argument raised by the parties rests as well on 

a debate about statutory interpretation. Because in this aspect 

of the appeal we are called upon to interpret the meaning of a 

word or phrase chosen by the Legislature, we recite briefly the 

familiar concepts of statutory construction that guide us. 

Courts ordinarily “‘give substantial deference to the

interpretation an agency gives to a statute that the agency is 

charged with enforcing.’” R & R Mktg., LLC v. Brown-Forman 

Corp., 158 N.J. 170, 175 (1999) (quoting Smith v. Dir., Div. of 

Taxation, 108 N.J. 19, 25 (1987)); accord Richardson v. Bd. of 

Trs., Police & Firemens’ Ret. Sys., 192 N.J. 189, 196 (2007). 

However, we are “in no way bound by the agency’s interpretation 

of a statute or its determination of a strictly legal issue.” 

In re Taylor, 158 N.J. 644, 658 (1999) (quoting Mayflower Sec. 

Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). 

As we have long recognized, in general, “[i]n any matter 

requiring our consideration of a statute, our essential task is 

to understand and give effect to the intent of the Legislature.” 

Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J. 251, 264 (2008); see

also Roberts v. State, Div. of State Police, 191 N.J. 516, 521 

(2007) (construing meaning of police disciplinary statute 
31

through use of extrinsic aids); Bunk v. Port Auth. of N.Y. & 

N.J., 144 N.J. 176, 194 (1996) (construing intent of 

Legislature’s amendment to Worker’s Compensation Act). 

In engaging in that important task, “we look first to the 

plain language of the statute, seeking further guidance only to 

the extent that the Legislature’s intent cannot be derived from 

the words that it has chosen.” Pizzullo, supra, 196 N.J. at 

264; accord Roberts, supra, 191 N.J. at 521. If “the language 

is not clear and unambiguous on its face, we look to other 

interpretive aids to assist us in our understanding of the 

Legislature’s will.” Pizzullo, supra, 196 N.J. at 264; see, 

e.g., Roberts, supra, 191 N.J. at 521 (reviewing extrinsic aids 

including Governor’s conditional veto message and bill sponsor’s 

statements); Panzino v. Cont’l Can Co., 71 N.J. 298, 301-03 

(1976) (relying on bill sponsor’s statement for guidance).

With these precedents as our guide, we turn to the dispute 

between the parties concerning the meaning of the statute 

limiting the railroad’s power to condemn to circumstances “as 

exigencies of business may demand[.]” N.J.S.A. 48:12-35.1. 

In striving to determine what the Legislature intended when 

it chose the word “exigencies[,]” the ALJ applied a dictionary 

definition. Using that approach, the ALJ concluded that the 

term meant “need, demand or requirement to a circumstance or 

condition.” In affirming that conclusion, the Appellate 
32

Division expanded on the analysis, considering the dictionary 

definition and the statute as a whole. As the panel therefore 

explained, the word “exigency” did not connote an emergency or 

an urgent need, but instead, when viewed in light of the entire 

statute, was meant to convey the reasonable demands of the 

business of a railroad. Norfolk Southern, supra, 424 N.J. 

Super. at 120-21 (citing Hubner v. Spring Valley Equestrian

Ctr., 203 N.J. 184, 195 (2010)).

Our evaluation proceeds on a somewhat different course

because modern day definitions are inconsistent and lead to 

contrary conclusions. Although the ALJ and the appellate court 

used a dictionary that gave a definition that apparently fits 

the overall statutory intent, it is not the only dictionary 

definition for the term we are called upon to interpret. Other 

dictionaries define exigency in terms of “a state of affairs 

that makes urgent demands[,]” Webster’s Ninth New Collegiate 

Dictionary 435 (1985), or as a “state of urgency; a situation 

requiring immediate action[,]” Black’s Law Dictionary 655 (9th 

ed. 2009). 

Those definitions are perhaps a reflection of the use of 

the term as it is meant in the context of rights protected by 

the Fourth Amendment, see U.S. Const. amend. IV, and by our 

parallel constitutional provision, see N.J. Const. art. I, ¶ 7.

In that context, the word, which is ordinarily used in the 
33

phrase “exigent circumstances,” always connotes a sense of 

urgency or emergency in which action is needed. See State v. 

Johnson, 193 N.J. 528, 552-53 (2008) (observing that term 

“cannot be precisely defined . . . [but involves circumstances] 

when inaction due to the time needed to obtain a warrant will 

create a substantial likelihood that the police or members of 

the public will be exposed to physical danger or that evidence 

will be destroyed or removed from the scene”); see also Black’s 

Law Dictionary 277 (9th ed. 2009) (defining exigent 

circumstances as “situation that demands unusual or immediate 

action and that may allow people to circumvent usual 

procedures”). Although that understanding of the term, having 

found its way into common parlance, undoubtedly gave some 

support for Intermodal’s assertion in this dispute, it is not a 

useful avenue for interpretation of this statute.

Rather, as this appeal illustrates, modern understandings 

of words or phrases may not be appropriate guides in statutory 

interpretation, particularly if a statute was crafted decades in 

the past, or, as in this case, more than a century ago. Nor are 

they appropriate if a statute uses a term of art, in which 

circumstance we are bound to construe the term “in accordance 

with those meanings.” In re Lead Paint Litig., 191 N.J. 405, 

430 (2007); see also N.J.S.A. 1:1-1 (declaring that “words . . . 

having a special or accepted meaning in the law, shall be 
34

construed in accordance with such . . . meaning”); accord

Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553 (2009). 

In our quest to understand the meaning of the phrase used 

in this statute, therefore, it is appropriate for us to look to 

the language of the statute as well as to decisions published 

during the timeframe when the phrase was chosen by the 

Legislature in order to assist us in interpreting the phrase in 

accordance with its intended meaning. In particular, because 

the phrase connects the word “exigencies” with the word 

“business,” it is appropriate to look to published decisions 

that use both of those words so that we may understand the 

meaning in context and, therefore, glean what the Legislature 

understood the phrase to mean when choosing it. 

First, the phrase “exigencies of business[,]” which is now 

found in N.J.S.A. 48:12-35.1, is not one of recent vintage, but 

has deep roots in predecessor statutes governing the formation 

of railroads and the creation of their routes. Beginning with

the 1873 Act to Authorize the Formation of Railroad Corporations 

and Regulate Same (1873 Act), L. 1873, c. 413, §§ 1 to 39, the 

Legislature created a system to govern the way in which 

railroads could be formed and the manner in which they were to 

be operated. That original enactment, which preceded the 

passage of the Eminent Domain Act, L. 1900, c. 53, § 1, not only 

granted to directors of railroads the power to take land, see L.
35

1873, c. 413, § 1, but also included sections devoted to the 

technicalities of the way in which the power of condemnation 

could be exercised and how just compensation would be 

established, see id. §§ 11-13. 

The 1873 Act permitted takings of land for the purpose of 

laying tracks, creating a right of way, siting and building 

depots, and the like. In describing the scope of authority to 

take land, the Legislature used various kinds of limiting 

language. That is, takings for the right of way were limited to 

100 feet in width, id. § 11; takings of additional land to 

redirect a road or turnpike so as to ease ascent and descent of 

the tracks was permitted “as may be deemed requisite by the 

directors[,]” id. § 21; and, in general, appurtenant buildings 

were only permitted as deemed “expedient” for the safety of 

property and “for necessary uses appertaining to [the 

railroad’s] business[,]” id. § 17. 

The phrase “exigencies of business[,]” as it relates to 

railroads, first appeared in a separate piece of legislation 

enacted in 1877. See An Act Concerning Railroad Corporations

(1877 Act), L. 1877, c. 31, § 1. The 1877 Act, while not 

amending the more general railroad statute of 1873, permitted 

railroads to exercise the power of eminent domain “to all such 

lands adjoining their road as constructed on their right of way 

as located, as, in the judgment of the directors of such 
36

company, the exigencies of business may demand for the erection 

of freight and passenger depots and all other legitimate 

purposes of said company[.]” Ibid. 

Apparently proceeding in parallel fashion, the more general 

1873 Act was amended several times, in ways that are not germane 

to our analysis. In 1887, however, the Legislature amended the

1873 Act to incorporate the language that had been used in the 

1877 Act to describe the exercise of the power of eminent 

domain. L. 1877, c. 31, § 1. As a result, the 1887 amendment 

imported the phrase “the exigencies of business” into the more 

general railroad statute’s pre-existing authorization of eminent 

domain. After the passage of the Eminent Domain Act in 1900, L.

1900, c. 53, §§ 1 to 19, the statutes governing railroads 

underwent a general revision. See 1903 Act Concerning Railroads

(1903 Act), L. 1903, c. 257, §§ 1 to 89. In part, that new 

statute omitted the earlier-included sections on the technical 

manner in which the power of eminent domain could be exercised,

in favor of incorporating the procedures found in the Eminent 

Domain Act by reference. See id. § 13. The 1903 Act, 

therefore, included the general grant to railroads of the power 

of eminent domain, along with the reference to the scope of that 

authority being limited “as in the judgment of the [railroad’s] 

directors . . . the exigencies of business may demand.” Ibid.
37

The 1903 Act was often referred to at the time as the 

General Railroad law. Section 13 of the 1903 Act, relating to 

the condemnation power, was amended several times thereafter, 

before being repealed in 1962, see L. 1962, c. 198, § 198, and 

replaced with the current statute, L. 1962, c. 198, § 60 

(codified at N.J.S.A. 48:12-35.1). It was in 1962, in the 

context of classifying railroads as public utilities, see L.

1962, c. 198, § 48, that the Legislature deleted the earlier 

statutory reference to the “judgment of the directors,” leaving 

only the long-standing phrase, “exigencies of business may 

demand” as the standard.

Throughout all of those statutory changes, since 1877, the 

phrase regarding the exercise of the power of eminent domain by 

the railroad that refers to “the exigencies of business” has not 

been altered. The phrase, therefore, is best understood by 

seeking guidance as to the meaning that was ascribed to it both 

in decisions construing the 1903 Act, and in decisions that 

utilized it in analogous contexts in the late 1800’s when the 

Legislature included it in the laws governing railroads. 

There are published decisions issued by a variety of courts

that touch on the 1903 Act and that include references to the 

phrase “exigencies of business.” For example, the 1903 Act,

referred to by the court as the General Railroad Act, was the 

focus of a dispute in chancery about the authority of railroads 
38

to condemn. The Vice Chancellor referred to the phrase 

“exigencies of business” when quoting language from the statute, 

but decided the matter without construing the meaning of those 

words. See Benton & Holden, Inc. v. Cent. R.R. Co. of N.J., 122 

N.J. Eq. 309, 313 (Ch. 1937) (discussing General Railroad Act, 3 

Comp. Stat., p. 4224, § 13), aff’d o.b., 123 N.J. Eq. 163 (E. & 

A. 1938). Instead, the Chancellor considered whether the 

railroad’s action, challenged as a taking, was permitted because 

it was done pursuant to a direction from the Board of Public 

Utilities (BPU). Ibid. Because the Legislature had amended the 

statute, after the railroad acted, specifically to create the

authorization for a taking pursuant to a BPU directive, the 

Chancellor concluded that the railroad’s power to condemn based 

on such an order did not exist previously. Ibid. 

Although the Chancellor therefore did not construe the 

phrase concerning exigencies, there are other published 

decisions that concern either the 1903 Act in general or 

railroads in particular that are of assistance to this Court.

For example, in considering the claim of a plaintiff injured in 

a fall from a train platform, the Court of Errors and Appeals 

commented on the extent of the railroad’s duty, noting that

“[t]here was no proof that the platform was not constructed in 

the ordinary way, nor that the space was greater than the 

exigencies of business required.” Dotson v. Erie R.R. Co., 68 
39

N.J.L. 679, 685 (E. & A. 1903). The Court reached that 

conclusion by considering such factors as whether the dimensions 

of the platform were sufficient to accommodate passengers 

boarding and disembarking from trains, whether the platform was 

close enough to the rails to permit safe entry and exit, and 

whether the platform provided sufficient space to allow passage 

when considering the fact that trains ordinarily have parts that 

project to the sides and may intrude on the platform. Id. at 

684-85. Read in the context of the Court’s evaluation of the 

duty owed to the patron of the railroad, the phrase “exigencies 

of business” meant general needs of the business operation.

Ibid.; accord Feil v. W. Jersey & Seashore R.R. Co., 77 N.J.L.

502, 503-04 (E. & A. 1909) (affirming dismissal of law suit by 

passenger injured while walking along platform who unexpectedly 

stepped into properly designed, well-maintained depression in 

platform, referred to as a truckway, used by railroad to

transfer luggage between cars); see also Cullen v. W. Jersey & 

Seashore R.R. Co., 85 N.J.L. 708, 710-11 (E. & A. 1914)

(distinguishing Feil based on plaintiff’s allegation that 

truckway design was negligent). 

In an analogous context, the Supreme Court used the phrase

“exigencies of business” in addressing a dispute about whether 

property owned by a railroad was taxable. See State v. Haight, 

35 N.J.L. 40, 46 (Sup. Ct. 1870). There, the court, in applying 
40

the doctrine that taxation depended on actual use, relied on the 

phrase to comment on the difference between actual and potential 

use. The court explained that “[l]ands which a company has 

purchased and is holding merely with a view to an appropriation 

to business in the future, if the exigencies of business should 

require them, may be said to be held as a matter of convenience 

to the company, and not to be necessary to the prosecution of 

the objects of its incorporation.” Ibid. As used in that 

context, the phrase again was used to mean needs of the day or 

general needs of the business. 

There are, as well, a number of decisions reached in 

disputes that have arisen in other contexts to which we may turn 

to shed light on the historical understanding of the phrase 

“exigencies of business.” The Court of Errors and Appeals, in 

considering whether possessory interest in bonds should be 

tested in accordance with holder in due course principles, used 

the phrase as if it meant something more akin to convenience. 

See Morris Canal & Banking Co. v. Fisher, 9 N.J. Eq. 667, 699 

(E. & A. 1855). That is, after commenting that bank notes are 

so construed, the court observed that “[b]y analogy to this 

class of cases, the exigencies of business have from time to 

time introduced other securities into the same category.” Ibid.

Likewise, the Court of Errors and Appeals used the phrase 

to describe a general course of business in the context of 
41

whether a note was properly dishonored by a bank. See Fifth 

Ward Sav. Bank of Jersey City v. First Nat’l Bank of Jersey 

City, 48 N.J.L. 513, 522 (E. & A. 1886) (observing that “[c]all 

loans on notes payable on demand . . . are a common method with 

banks of loaning unemployed funds, and it is usual to raise 

money, when required by the exigencies of business, on such 

notes and collaterals, by transferring them to other banks”). 

Finally, the phrase was employed by the Vice Chancellor to 

distinguish between forfeitures that call for the intervention 

of the courts of equity and those that do not. See N. Jersey 

St. Ry. Co. v. S. Orange, 58 N.J. Eq. 83, 91-92 (Ch. 1899). In 

that decision, the Vice Chancellor described the “class of cases 

comprising mercantile contracts where the exigencies of business 

and trade require that a party having paid a sum of money on a 

particular account and agreeing to pay a further sum on a 

certain day on the same account, and failing to pay such sum, 

should lose what he has already paid.” Distinguishing that 

class of cases, the court declined the application by a 

municipality seeking to declare a forfeiture of streetcar 

property. Ibid. 

As these decisions illustrate, when courts have been called 

upon to interpret the meaning of the phrase “exigencies of 

business” in the past, it has been regarded as a term of art. 

As such, it has been understood to describe generally the needs 
42

of business, or the ordinary course of business, rather than to 

allude to an emergent, urgent, immediate, or pressing need. 

Indeed, it is the influence of our modern jurisprudence in the 

criminal context that has imbued the term with those notions. 

We conclude, as we must, that the Legislature meant the phrase 

“exigencies of business” to be understood in accordance with the 

way in which it was used at the time when the language was 

chosen.

Moreover, that understanding of the phrase is the most 

sensible one when considering the way in which railroads 

operate. Simply put, demanding that the railroad demonstrate 

that there is an urgency or an immediacy that motivates its 

exercise of eminent domain to acquire a tract of land, as 

Intermodal suggests, would require us to close our eyes to the 

reality of how railroads are developed and built. Long-term 

planning is critical to rail transport, and we detect no basis 

on which to conclude that the Legislature intended to demand 

that railroads prove urgency, immediacy or emergency of their 

need for land as a prerequisite to exercising their statutory

condemnation power.

V.

The judgment of the Appellate Division is affirmed.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN and 

PATTERSON; and JUDGES RODRÍGUEZ and CUFF (both temporarily 

assigned) join in JUSTICE HOENS’s opinion.
SUPREME COURT OF NEW JERSEY

NO. A-117 SEPTEMBER TERM 2011

ON CERTIFICATION TO Appellate Division, Superior Court

NORFOLK SOUTHERN RAILWAY

COMPANY, a Virginia

Corporation,

Petitioner-Respondent,

v.

INTERMODAL PROPERTIES, LLC,

Respondent-Appellant.

DECIDED August 6, 2013

Chief Justice Rabner PRESIDING

OPINION BY Justice Hoens

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY 

CHECKLIST AFFIRM

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE HOENS X

JUSTICE PATTERSON X

JUDGE RODRÍGUEZ (t/a) X

JUDGE CUFF (t/a) X

TOTALS 7